DOBBS & DOBBS - [2020] FamCA 700

FAMILY COURT OF AUSTRALIA

DOBBS & DOBBS

[2020] FamCA 700

FAMILY LAW – PROPERTY – final property orders made in 2018 – where husband appealed the final property orders made to the Full Court of the Family Court of Australia – appeal dismissed by the Full Court – competing applications in a case by the parties for interpretation of final property orders and enforcement orders – where the parties disagree about what monies should be included in arriving at the net remaining balance from the sale of the property – where wife seeks the necessary orders to make superannuation splitting orders operative – machinery orders needed to give effect to the final property orders – binding orders needed to give effect to the final property orders.

FAMILY LAW – CONTRAVENTION – contravention applications filed by the husband and wife alleging breach of final Court orders – where some applications and/or counts of alleged contravening conduct were withdrawn and/or dismissed by the Court – where wife alleged breach by the husband resulting from the husband’s failure to transfer his interest in the former matrimonial home to the wife – wife alleges the husband breached final non-denigration order of the Court – the Court finds the husband contravened orders of the Court – husband alleged three counts of breach by the wife of final parenting orders – the Court finds the wife did not contravene final parenting orders – each of those counts is dismissed.

Family Law Act 1975 (Cth) ss 90XT, 106A

Dobbs & Dobbs [2018] FamCA 66
Dobbs & Dobbs [2019] FamCA 536

APPLICANT:

Mr Dobbs

RESPONDENT:

Ms Dobbs

FILE NUMBER:

MLC

8793

2015

DATE DELIVERED:

31 August 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

24 & 27 August 2020

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Hone Legal & Conveyancing

Orders made 24 August 2020

The husband have leave to withdraw his second contravention application filed on 2 April 2020.
The wife’s contravention application filed on 19 March 2020 is dismissed.
Both count 1 and count 2 of the wife’s contravention application filed on 22 January 2020 are dismissed.
The further hearing of counts 3, 4 and 5 of the wife’s contravention application filed on 22 January 2020 and the wife’s application in a case filed 19 March 2020 is adjourned to a date to be fixed.
The further hearing of counts 1, 3 and 4 of the husband’s first contravention application filed on 2 April 2020 is adjourned to a date to be fixed AND THE COURT NOTES the husband was granted leave to withdraw count 2 of his alleged contraventions on 2 July 2020.

Notation

A.Judgment is reserved in respect of both the Application in a Case filed by the husband on 18 June 2020 and the Application in a Case filed by the wife on 25 June 2020.

Orders made 27 August 2020

Count 4 of the husband’s first contravention application filed on 2 April 2020 is dismissed.
Count 4 of the wife’s contravention application filed on 22 January 2020 is dismissed.

Orders made 31 August 2020

Within 14 days of this date the wife shall serve upon O Limited (‘the trustee’) as trustee and issuer of O Superfund 2 which is part of the superannuation fund known as O Superfund (‘the fund’) a copy of orders 1, 2 and 3 herein and the splitting orders the Court proposes to make as set out in Annexure ‘A’ (‘the proposed orders’) and pursuant to s 90XT of the Family Law Act 1975 (Cth) (‘the Act’).
The wife shall cause evidence of such service pursuant to order 1 herein to be filed by no later than 14 days following the date of service.
In the event no response from the trustee is received by the wife within 14 days following the date of service, the proposed orders will be made as orders of the Court on the 15th day following the date of service.
Within 12 months of the date of these orders, the wife do all acts and things necessary to obtain an Australian Taxation Office (‘ATO’) assessment for Capital Gains Tax (‘CGT’) liability (‘the assessment’) arising from the sale of the real property known as and situate at D Street, Suburb L in the State of Victoria (‘the Suburb L property’).
Within 14 days of receipt of the assessment, the wife provide the husband with a copy of the assessment.
The wife shall be solely liable for the CGT liability referred to in order 4 herein and shall indemnify, and keep the husband so indemnified, in respect thereof.
From the sum of approximately $734,847.43 held on behalf of the parties in either the trust account or the statutory deposit account of Q Lawyers Pty Ltd there be a payment:-
(a) to the husband in the sum of $688,875.49; and
(b) to the wife in the sum of $45,971.94.
There is a stay on the payment to the husband as provided for in order 7(a) herein for the period up to and including 1 December 2020.
To give effect to the transfer of the husband’s interest in the real property known as and situate at B Street, Suburb C in the State of Victoria more particularly described in Certificate of Title Volume … Folio … (‘the Suburb C property’) pursuant to order 1 of the orders made by Justice Cronin on 15 February 2018, a Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to s 106A of the Act to execute all deeds and/or instruments in the name of the husband and do all acts and things necessary to give validity and operation to any such deeds and/or instruments which shall include all and any mortgage discharge documents and other like documents required to register the wife as sole proprietor of the Suburb C property and to enable the payment out of the CBA mortgage encumbering the title to the Suburb C property.
The husband forthwith, upon request, pay to Q Lawyers Pty Ltd any fees reasonably incurred by them in the transfer of the monies held in their trust account on behalf of the parties to the statutory deposit account of Q Lawyers Pty Ltd.
Upon the Court finding the husband has contravened order 1 of the orders made 15 February 2018 and order 14 of the orders made 9 February 2018 the Court shall be required to make orders addressing what consequences and/or penalties, including costs, shall be imposed upon the husband. That matter shall be listed for hearing on 20 November 2020 at 10.00am. The wife shall file and serve at least 7 days prior thereto an affidavit of evidence as to any costs and other financial losses alleged to have been occasioned to her by virtue of the husband’s breach of order 1 of the orders made 15 February 2018.

Notations

A.The proposed orders are set out in Annexure ‘A’ to these orders.

Annexure ‘A’

Both order 8 and order 9 of the orders made by Justice Cronin on 15 February 2018 are set aside and in substitution thereof the Court makes orders 2 to 9 herein.
Each of order 3, 4, 5 and 6 herein are binding on O Limited (‘the trustee’) as trustee and issuer of O Superfund 2 which is part of the superannuation fund known as O Superfund (‘the fund’).
Pursuant to s 90XT(4) of the Family Law Act 1975 (Cth) (‘the Act’), the base amount of $54,000 is allocated to the wife out of the husband’s O Superfund 2 Personal Super Plan interest in the fund, investor number …43 (‘the husband’s interest’).
Pursuant to s 90XT(1)(a) of the Act:-
(a)the wife is entitled using the base amount in the order immediately preceding this order, to be paid the amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (‘the Regulations’); and
(b)there be a corresponding reduction in the husband’s interest, and the interest and/or entitlement of such other person to whom a splittable payment may be made, would have had in the fund, but for these orders.
The trustee and the parties in accordance with the obligations set out in the Act; the Family Law (Superannuation) Regulations 2001 (Cth) (‘the Family Law Superannuation Regulations’); the Superannuation Industry (Supervision) Act 1993 (Cth); and the Superannuation Industry (Supervision) Regulations 1994 (Cth) (‘the Superannuation Industry Regulations’) shall do all such acts and things and sign all such documents as may be necessary to calculate the wife’s entitlement and pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the fund in accordance with these orders. Such acts and things shall also include the doing of all things necessary and signing of all documents as are required to rollover to a superannuation fund of the wife’s nomination the amount to which she is entitled pursuant to orders 3 and 4 of these orders.
The effect of order 4 herein commences at the operative time, being 4 business days after service of a certified copy of these orders on the trustee of the fund.
The wife cause a certified copy of these orders to be served on the trustee within 14 days of the making of such orders.
There be liberty to apply to each party and the trustee in relation to the implementation of the orders affecting the superannuation interests of the parties.
In the event that either party refuses or neglects to sign a document necessary to give effect to these orders, a Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to s 106A of the Act to execute all documents and/or instructions in the name of that party and do all acts and things necessary to give validity and operation to such documents and/or instruments. There is liberty to the parties to apply on short notice for payment to them of any and all costs incurred as a result of the defaulting party’s conduct.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dobbs & Dobbs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8793 of 2015

Mr Dobbs

Applicant

And

Ms Dobbs

Respondent

REASONS FOR JUDGMENT

Preliminary

On 15 February 2018, His Honour Justice Cronin delivered Reasons for Judgment (‘the Reasons’) and made final property orders in competing property applications then before the Court (‘the final property orders’). There had been a long and conflict-driven history that preceded the making of those orders. Parenting and property orders were sought by both parties. The proceeding had commenced in the Federal Circuit Court of Australia upon the Applicant husband (‘the husband’) filing an Initiating Application on 17 September 2015. The proceeding was transferred to the Court by order of Her Honour Judge Stewart on 9 September 2016.[1] The final property orders made by His Honour Justice Cronin are pivotal to a part of the extant proceedings now before me. Those orders are set out hereafter in their entirety, to provide context. They are:-
[1] Order made by Judge Stewart in the Federal Circuit Court on 9 September 2016, order 12.
(1)That the husband transfer to the wife all of his interest in the house at B Street, Suburb C.
(2)That the remaining funds from the sale of the property at F Street after allowing for the anticipated capital gains tax liability, be immediately paid to the husband.
(3)The husband retain and the wife relinquish any interest in the parties MISA account.
(4)That the wife forthwith place the house at D Street, Suburb L on the market for sale on terms to be agreed and failing agreement, upon order of the court. Upon the settlement of the sale, the proceeds be dispersed as follows:-
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage to the Commonwealth Bank;
(c)Thirdly, to set aside the sum of $108,000 to cover the capital gains tax liability arising from the sale; and
(d)Fourthly, to substitute the net remaining balance for the figure set out as the net equity anticipated from the sale of D Street in paragraph 42 of the reasons for judgment this day.
(5)That upon the completion of the matters required of the parties in order [4] hereof, the equity in the assets set out in paragraph 42 of the said reasons be divided as to 55% to the wife and 45% to the husband.
(6)That if necessary, the wife pay to the husband (within such time as is agreed, and failing agreement within 30 days after the calculations are concluded in order [5]), such sum as is necessary to enable the husband to receive his entitlement under order [5].
(7)If the wife fails to make the payment required as contemplated by order [6], she forthwith thereafter place the house at B Street on the market for sale on terms and conditions to be agreed and failing agreement as ordered by the court and the proceeds of the sale be applied as follows:-
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage to the Commonwealth Bank;
(c)Thirdly, to substitute the figure set out as the value of B Street in paragraph 42 of the reasons for judgment this day; and
(d)Fourthly, to divide the assets set out in paragraph 42 of the reasons for judgment according to order [5].
(8)Pursuant to s 90MT of the Family Law Act 1975, whenever a splittable payment becomes payable to the husband in respect of his interest in the self-managed superannuation fund held in O Superfund 2 Personal Super Plan, the wife be paid the base amount which is fixed in the sum of $54,000 and there be a corresponding reduction in the entitlement of the husband in the said fund.
(9)The operative time for the purposes of order 8 is the 10th day after the date of these orders.
(10)That the husband retain, and the wife relinquish any interest in, the property in his possession not otherwise covered by these orders.
(11)That the wife retain, and the husband relinquish any interest in the property in her possession not otherwise covered by these orders.
(12)That save as to issues of costs, all outstanding applications between the parties are otherwise dismissed.
The husband appealed the final property orders, unsuccessfully. His appeal was dismissed by the Full Court of the Family Court of Australia on 10 September 2018. The husband was ordered to pay the wife’s costs in the sum of $15,000. He did not do so. The wife also had outstanding costs orders against her (in favour of the husband) being orders made by the Court on 24 August 2017 and orders made in the Federal Circuit Court of Australia on 9 September 2016. The combination of these orders meant, in a practical sense, that the self-represented husband, who is a solicitor and an officer of the Court, owed the wife the sum of $9,000 by way of a costs order. The parties could not do what you would expect, which was to sort out this fairly simple matter, by the husband paying that which he owed. It required a further order of the Court, this time an order of Her Honour Justice Johns on 16 July 2019, to address that issue amongst others, including contravention applications and applications as to the provisions for sale of the property situate at and known as D Street, Suburb L in the State of Victoria (‘the Suburb L property’) as referred to in His Honour Justice Cronin’s orders and Reasons of 15 February 2018. The relevant order as to the costs issue is as follows:-
That from the husband’s entitlements pursuant to order 4 of the Final Orders, the wife be paid the sum of $9000, being costs awarded to her pursuant to the order of the Full Court of the Family Court of Australia dated 10 September 2018, less the costs awarded to the husband pursuant to orders of the Federal Circuit Court of Australia dated 9 September 2016 and the Family Court of Australia dated 24 August 2017.[2]
[2] Order made by Johns J on 16 July 2019, order 3.
A number of further matters, as outlined in respective extant applications of the parties, are now required to be addressed to give effect to the final property orders. These are:-
a)the splitting orders in respect of the husband’s superannuation interest. Those entitlements in their totality remain under the control of the trustee of the superannuation fund of which the husband is a member;
b)the meaning of the expression “all costs, commissions and expenses of the sale” as it appears in order 4 of the final property orders. The parties disagree as to what monies should be included in accordance with the final property orders before arriving at the net remaining balance from the sale of the Suburb L property. That balance is to be divided between them. Each of the parties have had the benefit of reading the Reasons of His Honour Justice Cronin to assist them in determining the intention of the Court in the making of the final property orders. The husband also challenges the quantum of the mortgage paid out in the context of it having increased in the sum of approximately $20,330 since the making of the final property orders; and
c)that order 1 of the final property orders provided, in essence, for the husband to transfer all of his interest in the former matrimonial home known as and situate at B Street, Suburb C in the State of Victoria more particularly described in Certificate of Title Volume … Folio … (‘the Suburb C property’) to the wife. Although more than two years and six months have passed since the making of that order, the transfer is not registered and indeed the husband’s evidence is that such transfer is unable to be effected. The husband’s alleged failure to comply with this order is also the subject of a Contravention Application filed by the wife on 22 January 2020. The evidence in respect of that matter is also before me for the purposes of this matter.

Material before the Court

The husband relied upon the following material:-
a)two Contravention Applications both filed by him on 2 April 2020;
b)an Application in a Case filed by him on 18 June 2020;
c)affidavits sworn by him on 30 March 2020 and 18 June 2020;
d)an affidavit of service sworn by P Service on 28 June 2020; and
e)the following exhibits tendered by him, accepted into evidence and marked by the Court on 27 August 2020:-
i)exhibit ‘H-1’ being a letter addressed to the husband regarding the O Superfund 2 personal super plan dated 23 July 2020;
ii)exhibit ‘H-2’ being a portfolio statement regarding the O Superfund 2 dated 28 February 2020; and
iii)exhibit ‘H-3’ being a Victorian Title Search document for the Suburb C property dated 18 November 2019.
The wife relied upon the following material:-
a)an Application in a Case filed by her on 22 January 2020;
b)an Application in a Case filed by her on 19 March 2020 and a supporting affidavit sworn by her on 13 March 2020;
c)an Application in a Case filed by her on 25 June 2020 and supporting affidavit sworn by her on 24 June 2020;
d)a Contravention Application filed by her on 22 January 2020;
e)a Contravention Application filed by her on 19 March 2020 and a supporting affidavit sworn by her on 13 March 2020;
f)a Response to an Application in a Case filed by her on 25 June 2020 and supporting affidavit sworn by her on 24 June 2020;
g)an affidavit sworn by her on 22 January 2020 in support of both of the Application in a Case and Contravention Application filed by her on 22 January 2020;
h)an affidavit sworn by her on 24 June 2020 in response to the first Contravention Application filed by the husband on 2 April 2020;
i)affidavits sworn by her on 29 June 2020 and 22 July 2020 both in response to the second Contravention Application filed by the husband on 2 April 2020;
j)an affidavit of service sworn by the wife on 21 February 2020; and
k)the following exhibits tendered by her, accepted into evidence and marked by the Court on 27 August 2020:-
i)exhibit ‘W-1’ being a Victorian Title Search document for the Suburb C property dated 14 February 2020;
ii)exhibit ‘W-2’ being a Withdrawal of Caveat document signed by Ms Dobbs senior, the mother of the husband, on 29 May 2009;
iii)exhibit ‘W-3’ being a Victorian Historical Title Search for the Suburb C property for the period from 13 May 2002 until 20 May 2020 and produced on 26 August 2020; and
iv)exhibit ‘W-4’ being various exhibits to each of the affidavits sworn by the wife on 22 January 2020 and 22 July 2020.

On 27 August 2020, the wife sought to rely upon an affidavit sworn by her on 26 August and which she had filed on 27 August 2020. This affidavit was not accepted into evidence save that the Court did accept the evidence of the wife that the parties’ joint mortgage secured over the Suburb C property had further increased and was now in the sum of $836,696.

The splitting order

It is clear from the Reasons that the wife sought the Court make orders in relation to the superannuation interests of the husband, whilst taking into consideration each of the parties’ respective superannuation interests. Both parties sought that the Court approach that matter as a consideration separate from the consideration by His Honour Justice Cronin of the parties assets and liabilities. The Court did so, and determined that as a result of that consideration, the base amount that should be paid to the wife out of the superannuation interests of the husband was in the sum of $54,000 and that a corresponding deduction in the husband’s entitlements should occur.
The orders sought were required to be made in accordance with Pt VIIIB Division 3 (see s 90XS(2)) of the Family Law Act 1975 (Cth) (‘the Act’). The reference in order 8 of the final property orders, to s 90MT of the Act, could have been amended by the slip rule if the error had been brought to the attention of His Honour Justice Cronin. Neither party made such approach. More importantly, however, there did not appear in His Honour Justice Cronin’s orders the necessary binding (including enforcement) and mechanical orders necessary to give effect to that which was clearly intended by His Honour, as was conceded by each of the parties before me. Further, order 9 of the final property orders made reference to an “operative time” which does not make sense in the absence of these usual accompanying orders.
Relevantly, none of the husband’s grounds of appeal related to the superannuation adjustment of the husband’s superannuation interests.
The wife has sought, since the making of the final property orders, to have them become operative. A part of the proceeding before Registrar Mestrovic on 21 February 2020 went to this issue. The Registrar made an order, relevantly, as follows:-
Within seven days the Respondent provide to the Applicant the full name of his superannuation fund, the member account number, the particular trustee of the fund and the most recent member statement.[3]
[3] Order made by Registrar Mestrovic on 21 February 2020, order 4.
On 7 April 2020, the matter was first before me in the judicial duty list, along with a number of other matters. To progress the matter before it could be given sufficient hearing time, the Court made, relevantly, the following order:-
The Respondent provide to the Applicant within 48 hours hereof a statement from the O Superfund 2 Personal Super Plan which provides precise details as to the current superannuation fund benefits of the Respondent being total funds held on his behalf in that fund.[4]
[4] Order made by Justice Hartnett on 7 April 2020, order 1.
The need for the making of the order referred to above was that the husband had not provided to the wife his superannuation interests in dollar value because he had determined he did not need to do so, despite the existing order of Registrar Mestrovic made on 21 February 2020. A “most recent member statement” as referred to in Registrar Mestrovic’s order of 21 February 2020 was not, in his view, a sufficient description to produce that which he should have disclosed.
The Court shall make binding and mechanical orders to give effect to the orders of 15 February 2018 and to acknowledge the very clear intent of the Court. The parties accept the Court made a splitting order for which effective provision shall now be made.

Monies to be deducted from the sale of the Suburb L property

In paragraph 42 of the Reasons, His Honour Justice Cronin sets out the assets and liabilities of the parties. There is no issue with those monies retained by the husband. His Honour made orders in respect of same as follows:-
2.That the remaining funds from the sale of the property at F Street after allowing for the anticipated capital gains tax liability, be immediately paid to the husband.
3.The husband retain and the wife relinquish any interest in the parties MISA account.
In respect of the Suburb L property, His Honour made orders as follows:-
4.That the wife forthwith place the house at D Street, Suburb L on the market for sale on terms to be agreed and failing agreement, upon order of the court. Upon the settlement of the sale, the proceeds be dispersed as follows:-
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage to the Commonwealth Bank;
(c)Thirdly, to set aside the sum of $108,000 to cover the capital gains tax liability arising from the sale; and
(d)Fourthly, to substitute the net remaining balance for the figure set out as the net equity anticipated from the sale of D Street in paragraph 42 of the reasons for judgment this day.
(5)That upon the completion of the matters required of the parties in order [4] hereof, the equity in the assets set out in paragraph 42 of the said reasons be divided as to 55% to the wife and 45% to the husband.
In paragraph 71 of the Reasons, His Honour noted his reasoning behind making orders in terms of orders 4 and 5 of the final property orders. His Honour said:-
I consider it is just and equitable to give the wife a small increase on the otherwise equal division such that it equates to 10% more than the husband; that is, a division of 55% to the wife and 45% to the husband. Critically, it is the underlying value of those percentages which must be just and equitable and that is somewhat uncertain here because D Street may not sell for what the parties anticipated. That necessitates an order ensuring a formula to allow for the rise and fall in the sale.
The orders made referred specifically to the incurring of Capital Gains Tax (‘CGT’) on two properties. The anticipated amounts were included (by virtue of a combination of the orders and paragraph 42 of the Reasons) as the amounts in relation to which provision was made by His Honour Justice Cronin for deduction or setting aside before a distribution of funds to the parties. The husband was responsible for the lesser liability. The husband’s evidence is that the actual sum paid by him was approximately $27,853.91 and not $20,000 being the sum allowed for by His Honour Justice Cronin. [5] The wife’s evidence is that her CGT liability will far exceed $108,000 – she estimates by at least a further $42,000 – but that she has yet to obtain an assessment from the Australian Taxation Office (‘ATO’). Her estimate appears fairly accurate. Unlike the husband, she sought no adjustment and accepted the orders on their face. Her approach is correct. There is no provision in the orders for any subsequent alteration of such sums nor mention in that regard in the Reasons.
[5] Affidavit of Mr Dobbs sworn 18 June 2020, paragraph 12.
The mortgage at the time of trial was approximately $180,000.[6] At the time of settlement of the sale, the mortgage encumbrance was in the sum of $200,330.43 as owing to the Commonwealth Bank of Australia (‘CBA’). This was an increase of approximately $20,330.[7] The property had been unable to be sold following the trial as “serious structural issues” prevented the sale from proceeding. These issues needed addressing. The wife applied capital sums of approximately $25,000 most of which she obtained from the receipt of rental income during the small period she was able to rent the property although the Court notes she sustained overall a modest loss in that regard.[8] The husband applied no funds. The wife was also required to meet the mortgage repayments during the undertaking of the rectification works for a period of 12 months whilst the property remained vacant. These matters combined lead to the increase in the mortgage sum in a relatively minor way. The husband made no contribution to these expenses. The wife paid what she could. The sale price also increased from the value ascribed at trial of $975,000 to a sum of $982,500.[9] The husband benefited from this expenditure by the wife in relation to which he made no contribution. Not only was the property able to be sold, but there was an increase in the anticipated sale price of $7,500.
[6] Affidavit of Ms Dobbs sworn 24 June 2020, paragraph 66.
[7] Affidavit of Ms Dobbs sworn 24 June 2020, paragraph 86.
[8] Affidavit of Ms Dobbs sworn 24 June 2020, paragraph 97.
[9] Affidavit of Ms Dobbs sworn 24 June 2020, paragraph 86.
The final property orders made with respect to the Suburb L property specified no sale price and no mortgage sum. Those matters would fall where they did, at the relevant time. I reject the husband’s submissions that His Honour Justice Cronin would have had an expectation that the mortgage encumbrance would have been less by the time of settlement of the sale. The Reasons in their totality do not bear that out, indeed they speak to mortgage arrears and the parties’ respective inabilities, at times, to stem their rising debts. The orders anticipated the not unusual occurrences that have occurred as described above in these reasons.
The Suburb L property was finally sold on 5 February 2020 but not before the wife had to again return to the Court seeking orders that the husband remove a caveat lodged by him over the Suburb L property. The husband had already, in December 2019, caused a delay in the settlement of the sale of the Suburb L property by his obstructive actions. His Honour Justice Wilson made orders on 23 January 2020 as follows:-
1.By 7pm on 23 January 2020 the husband is to lodge a withdrawal of caveat and set his disbursements to zero.
2.The settlement proceeds are to be paid to Q Lawyers on trust in the name of both parties and no amount thereof is to be disbursed without court order or agreement with the husband stating on all documents required for electronic settlement purposes that he is to be disbursed no sum and preserving his entitlement to later argue as to the sum he is to be paid under s 79 of the Family Law Act.
3.This proceeding is to remain listed on 21 February 2020 before the docketed registrar.
(Emphasis omitted)
The husband did not lodge a withdrawal of caveat by 7.00pm on 23 January 2020 as ordered by His Honour Justice Wilson. He did so, on the wife’s evidence, some time on 5 February 2020 being the date of sale of the Suburb L property. Many prior requests had been made of him to comply with this order.
It is not surprising that the parties are now unable to agree n the sum to be deducted in respect of the “costs, commissions and expenses of the sale” of the Suburb L property. That is a matter that the final property orders, and paragraph 71 of the Reasons, anticipated may return to the Court for further adjudication. The wife provided evidence as to those “costs, commissions and expenses of the sale” which is highlighted particularly in paragraph 86 of her affidavit sworn on 24 June 2020. The husband did not cavil with the sum of $24,448.98 of the monies the wife claimed should be deducted.[10] He however disputed the monies which the wife included to be deducted as part of the costs and expenses of the sale. Those monies, totalling $23,552.84, comprise of:-
a)water rates in the sum of $2,583.41; [11]
b)council rates in the sum of $12,757.05; [12]
c)land tax in the sum of $5,822.38; [13]
d)an order of the Victorian Civil and Administrative Tribunal which required urgent plumbing repairs to be carried out by the wife in the sum of $1,730; [14] and
e)a default fee imposed by the purchaser due to the husband’s conduct which resulted in the delay of settlement in the sum of $660.[15]
The totality of the costs, commissions and expenses of sale the wife gave evidence as to, was in the sum of $48,001.82.
[10] Affidavit sworn by Ms Dobbs on 24 June 2020, paragraph 82.
[11] Ibid and paragraph 84.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Affidavit sworn by Ms Dobbs on 24 June 2020, paragraph 20 and paragraph 82.
The necessary plumbing works required an expenditure of $1,730.[16] The settlement of the sale could not proceed whilst this matter remained outstanding. The purchasers and the wife agreed that at settlement there would be an adjustment for this sum still not incurred by the wife but which would then be incurred by the purchasers. Essentially, the sale price was reduced by that amount. It was clearly an expense of the sale.
[16] Affidavit sworn by Ms Dobbs on 24 June 2020, paragraph 82.
The payment of rates and tax automatically came out of the settlement statement. Those monies were owed and collected at the point of sale, and were triggered by the sale. Given the earlier expenditure of the wife to get the property ready for sale, and His Honour Justice Cronin’s reference to these orders achieving justice and equity between the parties, it could not have been intended that the wife would bear the burden of these costs without equal contribution from the husband before the parties shared in a division of the net proceeds of sale. This is more particularly so, in His Honour’s consideration of matters of justice and equity as between the parties given His Honour’s findings that the majority of the costs of supporting the parties’ daughter would likely be borne by the wife in the future. The husband’s payment of child support to the wife in the intervening period has been, until the last month, a nominal monthly sum.
The Court concludes that an amount of $48,001.82 (all costs, commissions and expenses of the sale) should be deducted from the sale price of $982,500 leaving a sum of $934,498.18. From this sum should be deducted the mortgage quantum of $200,330.43 leaving $734,167.75. From the net sale proceeds (after all costs, commissions and expenses of sale and the mortgage repayment) should be put aside the sum of $108,000 as provided for in order 4(c) of the orders made on 15 February 2018. That leaves a net amount of $626,167.75.
There then remains to be apportioned between the parties in a 55 percent in favour of the wife division and 45 percent in favour of the husband division of the parties’ net assets by reference to His Honour Justice Cronin’s Reasons. The necessary calculation is as follows:-
a)the Suburb C property net equity $1,020,000;
b)the Suburb L property net equity $626,167.75;
c)the F Street property net equity is $28,000; and
d)the MISA monies is $50,000.
The total of the above is equal to $1,724,167.75. Forty-five percent of this amount is $775,875.49. Fifty-five percent of this amount is $948,292.26.
The husband has already received $78,000. Thus, after deducting $78,000 from his entitlement the husband should receive $697,875.49. From this must be deducted the $9,000 costs the husband must pay to the wife (see paragraph 2 above). Thus, after deducting a further $9,000 from his entitlement the husband should receive $688,875.49 of the $734,847.43 currently held in trust on behalf of the parties. That will leave an amount remaining of $45,971.94. This sum will be paid out to the wife to enable her, in part, to pay the CGT amount outstanding, as assessed.

The Suburb C property

The registered proprietors at trial, and now, are the husband and wife who became registered as joint proprietors on 3 March 2008. The only encumbrance noted on the title is a mortgage to the Commonwealth Bank of Australia. Both parties are liable in respect of that mortgage.
The husband’s evidence in the hearing of the current extant matters, was that:-
a)at trial he had no legal or equitable interest in the Suburb C property because he had already transferred all his interest in the Suburb C property to a family company, of which he and the wife were both directors and shareholders – but had not as yet registered such transfer. Surprisingly, the husband claimed he had no interest to transfer pursuant to the final property orders and in effect claimed that order 1 of those orders was incapable of practical effect. When cross-examined by the solicitor for the wife whether His Honour Justice Cronin had evidence before him as to that which was now being alleged by the husband, the husband replied “I’m not aware that he was aware of it” and “I’m not aware that was put to him”; and
b)his mother advanced monies to the parties. His mother as a consequence lodged a caveat on the title to the Suburb C property. That caveat has not been removed. It remains on the title. The existence of the caveat prohibits the transfer to any person of either the husband or wife’s interest in the Suburb C property (even if the husband had any interest which he claimed he did not) whilst the husband’s mother’s loan remained outstanding. The Court notes the wife’s evidence is that monies were borrowed from the husband’s mother by the parties early in their relationship and that those monies were repaid to the husband’s mother many years ago. That is entirely consistent with the determination of the matter at trial and on appeal; and
c)because of the matters in (a) and (b) above the husband did not sign any transfer of his interest in the Suburb C property until July 2019 despite repeated requests from the wife that he do so.
In July 2019, the husband appeared to comply with order 1 of the final property orders. That apparent compliance was in the context of the wife having brought before the Court a contravention application in respect of the husband’s failure to comply with order 1 of the orders of 15 February 2018 including signing the necessary transfer and discharge of mortgage documents. The husband initially gave evidence that he signed only the transfer document and whilst initially being insistent about this, altered his position on the second day of the hearing to indicate that he had signed documents. The husband’s signature he described as being his usual signature, although he states that he signed the documents whilst standing and not sitting. In light of the husband signing the necessary documents the wife withdrew her contravention application. She thought that would be the end of the matter. However the wife’s evidence is that the documents were not accepted by the CBA as the husband’s signature was not recognised. Thus the transfer and discharge of mortgage remained unable to be completed. It is clear on the wife’s evidence and upon reading the reasons for judgment of Her Honour Justice Johns on 16 July 2019 that the husband signed not only the transfer of land document as maintained by him on day one of the hearing, but also the other ancillary documents, including mortgage documents presented to him by the wife. In her Reasons for Judgment at paragraph 3 Her Honour Justice Johns said the following:-
It seems that issues with respect to the completion of that part of the orders has given rise to much conflict between these parties. Sensibly, after discussion between the parties and the bench, the issues in the wife’s contravention application were able to be resolved. The husband has this day executed a transfer of land, a discharge of mortgage and statement of transferor which will enable the perfection of the transfer of that property to the wife. In those circumstances, the wife has sought leave to withdraw her contravention application listed this day.
At this point in time, the husband has not complied with order 1 of the final property orders, and that is a period of approximately 17 months.
The transfer remains unregistered. The Suburb C property remains in the joint names of the parties. The mortgage encumbrance to the CBA remains a liability of the parties.

The Reasons disclose no claim by the husband’s mother in respect of any outstanding loan; no caveat lodged by her; no transfer by the husband of any interest in the Suburb C property to a company or any other person. Nor do the Reasons for Judgment of the Full Court of the Family Court of Australia disclose any evidence as to these matters.
The proceeding before His Honour Justice Cronin was a proceeding between the husband and the wife. No third party intervened nor did the husband suggest that it was necessary for a third party to intervene because orders would need to be sought against a third party.
The historical title search document tendered in evidence by the wife to counter the evidence of the husband now given, is evidence of the husband’s mother lodging a caveat on the Suburb C property on 16 August 2006. Her interest was as a chargee. On 24 August 2020, the wife provided to the Court a Victorian title search produced 14 February 2020 (for the purpose of establishing contrary to the husband’s assertions, that she and the husband remain the joint proprietors of the Suburb C property and no caveator interest is registered) and a withdrawal of caveat document signed on 29 May 2009 by Ms Dobbs senior, the mother of the husband.
The withdrawal of caveat document was not lodged by, inferentially, the wife until 9 January 2020. The husband’s evidence was that he had “no” knowledge of the withdrawal of the caveat by his mother nor the basis of the withdrawal. He, however, had not claimed that any monies were outstanding to his mother at trial nor on appeal. The husband had done his own title search in respect of the property in November 2019 which he tendered in evidence, for his purposes. It indicated his mother’s caveat remained. No doubt he was happy with that state of affairs given he considered it an “absolute prohibition” to transfer his interest in the Suburb C property to the wife because of the existence of that caveat. The husband also knew from his regular CBA bank statements that he remained jointly liable under the mortgage which was secured by the Suburb C property.
The totality of the evidence as to these matters provides support for the wife’s claim that the husband is very bitter that as an outcome in the property order proceedings, the wife received an order in her favour to enable her to obtain sole proprietorship of the Suburb C property. The husband had sought that outcome for himself. His actions have been such that they are evidence of a complete refusal to comply with the orders of the Court. Indeed, his actions provide evidence as to his engagement in a campaign aimed at defeating, or at the very least, delaying, the wife’s court ordered entitlements.

Further orders

The Court shall make an order pursuant to s 106A of the Act such that a Registrar of the Court can sign all necessary documents to effect the transfer of the Suburb C property to the wife. That authorisation shall include the signing of necessary documents in respect of a discharge of the mortgage.
The wife’s evidence is that although the husband signed the transfer of land and discharge of mortgage documents, his signature was not recognisable and has not been accepted by the CBA. She has been, as a consequence, unable to refinance for an extended period causing financial loss to her. His Honour Justice Cronin’s orders were clear. There was to be a transfer of the husband’s interest in the Suburb C property to the wife. The Court shall make an order as sought by the wife to secure the operation of that order in the absence of the husband’s co-operation.

Contraventions

The husband and wife both filed contravention applications that were before the Court. Some of those applications and/or counts of alleged contravening conduct were withdrawn by a party and/or dismissed by the Court for the reasons indicated to the parties at that time. Those remaining are canvassed below.
The wife filed a contravention application which included an allegation that the husband failed to comply with order 1 of the orders made 15 February 2018. The Court finds that allegation for the reasons set out herein, is proven. The husband has contravened order 1 of the Court made on 15 February 2018.
The wife also alleged, amongst the remaining alleged contraventions of orders of the Court by the husband, that he contravened a final parenting order made by His Honour Justice Cronin on 9 February 2018. That order was order 14 which is as follows:-
That both parents are restrained, by themselves, their servants or agents from:
(a) Discussing these proceedings, or any other proceedings involving both parents to or in the hearing of the child;
(b) Denigrating the other parent or the other parent’s family members or friends to or in the hearing of the child.
The alleged contravening conduct is that on 20 January 2019 and between 5.00pm and 6.00pm the husband took the parties’ child X with him to Police station 1. That is admitted by the husband. The husband also admits that the purpose of his visit to the police station was to make a complaint to police about what he deemed were offensive emails from the wife. He wanted her charged for breach of an intervention order. The content of the emails was the wife’s continued requests for the husband to transfer his interest in the Suburb C property to the wife. The husband needed to “immediately report” the wife’s repeated requests of him. He considered it “acceptable conduct” for him to take the child and attend upon the police station to make a complaint against the wife. The husband required categorisation of the wife’s conduct as an act of family violence. The husband’s visit to Police station 1 on 20 January 2019 placed his daughter in a terrible position. He showed no insight into her welfare. X will endlessly be caught in her parents’ dispute and suffer from it. His evidence was that he did not discuss the matter with X and that he did not discuss his complaint in the presence of X because he had her sitting on the far side of the room. The husband was clearly agitated. He had got into his car, with the child, and driven “immediately” to the police station. I do not accept his evidence that he spoke to the police officer in a tone that would have been unable to be heard by his daughter. I accept the wife’s evidence that X told her of her visit to the police station, and her father’s reason for it. On the evidence this is a very clear contravention by the husband of an order of the Court. The Court finds the husband contravened order 14 of the orders made 9 February 2018.
Amongst the husband’s alleged contraventions by the wife of orders of the Court there remained counts one, three and four of his application for contravention filed 2 April 2020. Each of those counts shall be dismissed. Count one was an allegation that the wife collected the child X for changeover at 7.00pm instead of 5.00pm. The wife was at the time, not inclined to collect X in the context of her frustration at the husband’s breaches, as she saw them, of Court orders. This incident occurred on 8 March 2020. The wife was to collect X from G Town at 5.00pm. She did not collect her until 7.00pm.
One might wonder why this was the subject of a contravention application. Well, certainly the wife was indicating to the husband earlier in the day her disinclination to attend changeover in G Town (she lives in Suburb C) on a Sunday night when compliance with Court orders seemingly meant nothing to the husband when it suited him. The husband responded to the wife by text message at 4.25pm on 8 March 2020 that “if you can’t make G Town McDonald by 5pm we can be later.” Thereafter the text dialogue concerned the wife’s accusations that X was sick and that the husband should take her to a doctor. The husband refused. The wife advised she would pick X up at 7.00pm and did so. The wife then sought medical treatment for X who had a temperature and needed medication. The Court finds no breach of the order in these circumstances.
Count three of his contravention application pressed by the husband was that on 22 March 2020 the wife failed to collect X from G Town and instead the husband was required to drive X to her maternal grandmother’s place in Melbourne, as directed by the wife. I accept the wife’s sworn evidence that she had developed a severe migraine on that day and was unable to drive to G Town. I find her to be a credible witness. But she did not convey that to the husband on the day. Instead she spoke of his flagrant breaches of the Court’s orders (as she felt them to be) and really, her inability to cope with the husband and his “repetitive inappropriate conduct”. She wished for no contact at changeover and thus no detriment to her mental health and to the welfare of their daughter. What contributed to the wife’s then fragile state of health, both physical and mental, was the husband’s attendance that day at Police Station 2 followed by Police Station 3 seeking to again have the wife charged with a breach of an IVO by her forwarding of emails to him seeking compliance with the superannuation orders of the Court. The police had contacted her that day. The police refused the husband’s demands. The Court finds no breach of the order in these circumstances.
Count four of his contravention application pressed by the husband was ultimately no case to answer. The circumstances did neither party any credit. The husband alleged breach by the wife of order 4(c) of the orders made on 9 February 2018. That order was as follows:-
(4) That the child spend time with the Father as follows:
…
(c)For one half of all term school holidays as agreed in writing between the parents and in default of agreement for the first half or each school holiday period.
…
The school holidays commenced on 26 March 2020. Neither party made any proposals in writing prior to the commencement of the holidays. Nor any proposal at all. After the holidays commenced, X was living with the wife and nothing had been heard from the husband. The wife communicated with the husband to reach agreement about the holidays. The husband declined any agreement. The usual dynamic occurred. The first week of the holidays was already being spent by X with her mother. The second week was then spent with the husband. The husband now categorises this as a breach of Court orders. That is absurd and once again, a gross misuse of the taxpayer-funded Court’s resources.
In respect of any contravention application by either of the parties that was heard by the Court each of the parties had leave to bring such applications if same were necessary. An adjournment shall now be necessary as to the question of penalty.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 31 August 2020.

Associate:

Date: 31 August 2020